[Cite as State v. Scott, 2015-Ohio-5397.]

COURT OF APPEALS 

FAIRFIELD COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. William B. Hoffman, P.J. 

 Plaintiff-Appellee : Hon. Patricia A. Delaney, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : Case No. 15-CA-7 

 : 

JAMES E. SCOTT : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Fairfield County Court 

of Common Pleas, Case No. 2014 CR 

437 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: December 21, 2015 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

GREGG MARX AARON CONRAD 

FAIRFIELD CO. PROSECUTOR 1201⁄2 E. Main St. 

ANDREA K. GREEN Lancaster, OH 43130 

239 W. Main St. 

Lancaster, OH 43130 

 
Fairfield County, Case No. 15-CA-7 2 

Delaney, J. 

{¶1} Appellant James E. Scott appeals from the January 30, 2015 Judgment 

Entry of Sentence of the Fairfield County Court of Common Pleas. Appellee is the state 

of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶2} Appellant is married to Lacy Scott and the couple have a child together. 

They live in an up-and-down duplex in the city of Lancaster with the child, along with 

two of appellant’s other stepchildren including T.A., age 16 at the time of these events. 

Lacy’s son Dakota Anderson, an adult, lives in the bottom half of the duplex with friends 

including Michael Callahan. On October 25, 2014, around 1:00 a.m., Lacy and 

appellant were in their home and Dakota and friends were in the garage. T.A. heard the 

sounds of arguing, screaming, and dishes being thrown coming from the upper floor of 

the duplex and went upstairs. She entered the kitchen and found Lacy on her back on 

the floor with appellant crouched beside her, choking her with his hands around her 

neck. 

{¶3} T.A. ran for help and Dakota and Callahan responded. By this point 

appellant and Lacy were arguing in the living room and Dakota attempted to step 

between them. Appellant repeatedly struck Dakota about the head and face. In the 

meantime, T.A. called 911. When she said police were coming, appellant ran out of the 

house and hid in a neighbor’s yard. 

{¶4} Responding police officers observed red marks to Lacy’s neck and bumps 

and bruises on Dakota’s face and head. They looked for appellant but were unable to 

find him at that point. After police left, appellant returned to the residence to demand 
Fairfield County, Case No. 15-CA-7 3 

his belongings and Lacy called 911. Appellant fled again but police found him hiding in 

undergrowth in a yard nearby. 

{¶5} Appellant had a cut to his right shoulder which was caused by Lacy 

stabbing him once with a steak knife. Lacy later testified this act was in self-defense in 

the midst of appellant’s assault upon her; appellant testified the stabbing was the act 

that initiated the chain of events. 

{¶6} Appellant was charged by indictment with two counts of domestic violence 

pursuant to R.C. 2919.25(A), both felonies of the third degree pursuant to R.C. 

2919.25(D)(4). The indictment notes Lacy is the victim of Count I and Dakota is the 

victim of Count II. Both counts of the indictment further specify: 

 Furthermore, [appellant] was previously convicted of or 

pleaded guilty to two offenses of domestic violence or violations of 

section 2903.14, 2909.06, 2909.07, 2911.12, 2911.211, or 2919.22 

of the Revised Code or any offense of violence involving victims 

who were family or household members at the time of the 

commission of the offenses, to wit: June 18, 2004 in Akron 

Municipal Court, Summit County, Ohio, of R.C. section 2919.25(A), 

Domestic Violence, in Case No.: 04CRB06455 and October 3, 

2013 in Fairfield County Common Pleas Court, Fairfield County, 

Ohio, of R.C. Section 2919.25(A), (D)(3), Domestic Violence, in 

Case No.: 13-CR-0392. 

{¶7} Appellant entered pleas of not guilty and the case proceeded to bench 

trial. 
Fairfield County, Case No. 15-CA-7 4 

{¶8} At trial, appellant did not challenge the second of the cited prior domestic 

violence convictions. Appellee entered a certified copy of appellant’s conviction in the 

Fairfield County Court of Common Pleas of domestic violence as a felony of the fourth 

degree in case number 2013-CR-0392 [State’s Ex. 24]. Officer William Dotson of the 

Lancaster Police Department testified on behalf of appellee that he was the arresting 

officer in that case and that he charged appellant with domestic violence as a felony of 

the fourth degree because he found a prior domestic violence conviction upon 

appellant’s criminal history. 

{¶9} Appellant did challenge appellee’s evidence regarding the first domestic 

violence conviction in Akron Municipal Court. Appellee entered a certified copy of 

documents from the Akron Municipal Court in case number 04 CRB 06455 [State’s Ex. 

23]. The documents include the affidavit for complaint signed by Officer V. Tassiello 

stating appellant grabbed the victim around the neck and pushed her against a door 

after a verbal argument. The victim is described as a person living as a spouse and the 

affidavit notes appellant was charged with one count of domestic violence pursuant to 

Akron Codified Ordinance 135.16. Also attached is a “Plea of Guilty to Charge and 

Waiver of Rights” signed by appellant indicating he entered a plea of guilty and his plea 

was accepted by the trial court. The final document is an Akron Municipal Court journal 

entry dated June 18, 2004 noting the case was disposed of by plea; 180 days of jail 

were imposed with 166 suspended and credit given for 14 days served on the condition 

appellant have no contact with the victim. The line of the judgment entry for “Count 

One,” however, is blank—the judgment entry alone does not indicate what offense 

appellant was convicted of. 
Fairfield County, Case No. 15-CA-7 5 

{¶10} Appellee also called Officer Tassiello as a witness at trial. Tassiello 

testified he took the report regarding the domestic violence incident and sought a 

warrant for appellant’s arrest. He was not present when the case was disposed of by 

plea but he personally obtained the certified copy of the case disposition from the Akron 

Municipal Court. Tassiello acknowledged the judgment entry of conviction does not 

state what charge appellant was found guilty of. 

{¶11} Appellant testified on his own behalf and acknowledged he has a number 

of felony convictions. On cross examination, the prosecutor asked appellant whether he 

was convicted of domestic violence in Akron Municipal Court and he responded “I 

believe so.” The prosecutor clarified whether the offense was a misdemeanor of the 

first degree and appellant responded, “I don’t recall for sure. Yeah, sure.” (T. II, 556.) 

{¶12} Appellant then acknowledged a March 12, 2009 felony domestic violence 

conviction in Franklin County. At first appellant said he did not recall what the offense 

was, but the prosecutor confronted him with a judgment entry and the following 

testimony was presented: 

* * * *. 

[PROSECUTOR]: On March 12, 2009, you don’t recall being 

convicted of domestic violence, a felony of the fifth degree, in 

Franklin County? 

[APPELLANT]: I’m not sure, ma’am. 

[PROSECUTOR]: Would seeing a judgment entry refresh your 

recollection with regard to that? 

[APPELLANT]: That it could. 
Fairfield County, Case No. 15-CA-7 6 

* * * *. [Prosecutor presents appellant with document.] 

[PROSECUTOR]: I’ll repeat the question now that you’ve had a 

chance to review that. 

 Is it true that on March 12, 2009, you were convicted of 

domestic violence in the Franklin County Court of Common Pleas? 

[APPELLANT]: Yes. 

[PROSECUTOR]: And is it true that that was a felony of the fifth 

degree? 

[APPELLANT]: That’s what it states, yes. 

[PROSECUTOR]: And is it also true that on October 3, 2013, that 

you were convicted of domestic violence here in Fairfield County? 

[APPELLANT]: Yes. 

[PROSECUTOR]: And that was a felony of the fourth degree? 

[APPELLANT]: Correct. 

[PROSECUTOR]: So you have a total of three prior domestic 

violence convictions; right? 

[APPELLANT]: I believe that’s what it is, yes. 

* * * *. 

T. II, 557-558. 

{¶13} The copy of the Franklin County conviction is not evidence. 

{¶14} At the close of appellee’s evidence and at the close of all of the evidence, 

appellant moved for a judgment of acquittal pursuant to Crim.R. 29(A) on the basis that 
Fairfield County, Case No. 15-CA-7 7 

appellee had not offered sufficient proof of the prior domestic violence conviction in 

Akron. The trial court overruled the motions and appellant was found guilty as charged. 

{¶15} Appellant now appeals from the judgment entry of conviction and 

sentence of the trial court. 

{¶16} Appellant raises one assignment of error: 

ASSIGNMENT OF ERROR 

{¶17} “THE COURT ERRED IN FINDING THERE WAS SUFFICIENT 

EVIDENCE TO PROVE DEFENDANT HAD TWO OR MORE PRIOR CONVICTIONS 

FOR DOMESTIC VIOLENCE, AND THUS ERRED IN CONVICTING DEFENDANT 

FOR DOMESTIC VIOLENCE AS A THIRD DEGREE FELONY.” 

ANALYSIS 

{¶18} In his sole assignment of error, appellant argues appellee presented 

insufficient evidence of two or more prior convictions of domestic violence. We 

disagree. 

{¶19} The standard of review for a challenge to the sufficiency of the evidence is 

set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two 

of the syllabus, in which the Ohio Supreme Court held, “An appellate court’s function 

when reviewing the sufficiency of the evidence to support a criminal conviction is to 

examine the evidence admitted at trial to determine whether such evidence, if believed, 

would convince the average mind of the defendant’s guilt beyond a reasonable doubt. 

The relevant inquiry is whether, after viewing the evidence in a light most favorable to 

the prosecution, any rational trier of fact could have found the essential elements of the 

crime proven beyond a reasonable doubt.” 
Fairfield County, Case No. 15-CA-7 8 

{¶20} In this case, appellant was found guilty upon two counts of domestic 

violence, both felonies of the fourth degree. R.C. 2919.25(A) and (D)(4) state in 

pertinent part: 

(A) No person shall knowingly cause or attempt to cause physical 

harm to a family or household member. 

* * * *. 

(D)(1) Whoever violates this section is guilty of domestic violence, 

and the court shall sentence the offender as provided in divisions 

(D)(2) to (6) of this section. 

* * * *. 

(4) If the offender previously has pleaded guilty to or been 

convicted of two or more offenses of domestic violence or two or 

more violations or offenses of the type described in division (D)(3) 

of this section involving a person who was a family or household 

member at the time of the violations or offenses, a violation of 

division (A) or (B) of this section is a felony of the third degree * * *. 

* * * *. 

{¶21} In this appeal, appellant challenges only appellee’s evidence as to the 

prior domestic violence conviction in the Akron Municipal Court. Having viewed the 

evidence in the light most favorable to appellee, we find the trial court could rationally 

find sufficient evidence of this prior conviction. 

{¶22} If the existence of a prior offense is an element of a subsequent crime, the 

state must prove the prior conviction beyond a reasonable doubt and the factfinder must 
Fairfield County, Case No. 15-CA-7 9 

find the previous conviction has been established in order to find the defendant guilty on 

the subsequent offense. State v. Day, 99 Ohio App.3d 514, 517, 651 N.E.2d 52 (12th 

Dist.1994). “Whenever in any case it is necessary to prove a prior conviction, a certified 

copy of the entry of judgment in such prior conviction together with evidence sufficient to 

identify the defendant named in the entry as the offender in the case at bar, is sufficient 

to prove such prior conviction.” R.C. 2945.75(B)(1). Additional evidence beyond a 

certified copy of a conviction must be offered. State v. King, 5th Dist. Stark No. 

1999CA0064, unreported, 2000 WL 530048, *4 (Mar. 13, 2000), citing State v. Blonski, 

125 Ohio App.3d 103, 109, 707 N.E.2d 1168 (9th Dist.1997). R.C. 2945.75 sets forth 

one way, but not the exclusive way, of proving prior convictions. State v. Chaney, 128 

Ohio App.3d 100, 105, 713 N.E.2d 1118 (12th Dist.1998). 

{¶23} Despite a technical error in a judgment entry or in absence of one, the 

state can prove existence of a prior conviction through testimony at trial that links the 

defendant to a prior conviction. State v. Harrington, 3rd Dist. Logan No. 8-01-20, 2002-

Ohio-2190, ¶ 11. 

{¶24} In the instant case, a technical error exists in the certified copy of the 

judgment entry entered as appellee’s Ex. 23: the charge appellant pleaded to is omitted 

from the finding of guilt and sentence. The judgment entry alone establishes appellant 

was convicted of a first degree misdemeanor and his sentence included a no-contact 

order with the victim. The affidavit in support of the criminal complaint in the case 

establishes the charge was domestic violence, as signed by Officer Tassiello and as 

testified to by Tassiello. 
Fairfield County, Case No. 15-CA-7 10 

{¶25} Moreover, appellant was subsequently convicted of not one but two felony 

domestic violence charges in two separate instances, both predicated upon the Akron 

conviction: the Franklin County case and the Fairfield County case. 

{¶26} Finally, appellant admitted to having three prior domestic violence 

convictions. This case is thus distinguishable from appellant’s cited authority, State v. 

Gwen, in which the Ninth District Court of Appeals found the state’s evidence of a prior 

conviction to be insufficient where the evidence only established the initial charge and 

not the case disposition. 9th Dist. Summit No. 25218, 2011-Ohio-1512, ¶ 28 aff'd, 134 

Ohio St.3d 284, 2012-Ohio-5046, 982 N.E.2d 626. As the appellate court remarked, 

“there was no direct testimony that the defendant was convicted of or pled guilty to 

domestic violence.” Id. at ¶ 28, citing State v. Ferguson, 3rd Dist. Union No. 14-02-14, 

2003-Ohio-866 [arresting officer’s testimony provides sufficient evidence for factfinder 

that defendant was previously convicted of the offense even though the journal entry 

does not provide a finding of guilt.] 

{¶27} In affirming the judgment of the lower court, the Ohio Supreme Court 

found that when, pursuant to R.C. 2945.75(B)(1), the state chooses to offer judgment 

entries to prove the element of prior domestic-violence convictions in order to increase 

the offense level of a later domestic-violence charge under R.C. 2919.25(D)(4), the 

judgments must comply with Crim.R. 32(C). In that event, the judgment entry must set 

forth (1) the fact of a conviction, (2) the sentence, (3) the judge's signature, and (4) the 

time stamp indicating the entry upon the journal by the clerk. State v. Gwen, 134 Ohio 

St.3d 284, 290, 2012-Ohio-5046, 982 N.E.2d 626, 632, ¶ 23, citing State v. Lester, 130 

Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142, paragraph one of the syllabus, 
Fairfield County, Case No. 15-CA-7 11 

explaining Crim.R. 32(C), and modifying State v. Baker, 119 Ohio St.3d 197, 2008-

Ohio-3330, 893 N.E.2d 163. 

{¶28} The Court noted, though, that the state may opt to use other methods to 

establish the prior conviction. In fact, “[t]he defendant’s own admission that he had 

been convicted of domestic violence in the case to which that entry referred proves at 

least one prior offense.” Gwen, supra, 2012-Ohio-5046 at ¶ 21. 

{¶29} We conclude that despite the flaw in the Akron Municipal Court judgment 

entry, appellee presented sufficient evidence of at least two prior domestic violence 

convictions. Having examined the evidence admitted at trial to determine whether such 

evidence, if believed, would convince the average mind of appellant’s guilt beyond a 

reasonable doubt, we find his conviction upon two counts of domestic violence as 

felonies of the third degree are supported by sufficient evidence . 

{¶30} Appellant’s sole assignment of error is overruled. 
Fairfield County, Case No. 15-CA-7 12 

CONCLUSION 

{¶31} Appellant’s assignment of error is overruled and the judgment of the 

Fairfield County Court of Common Pleas is affirmed. 

By: Delaney, J. and 

Hoffman, P.J. 

Baldwin, J., concur.